AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Local Court 30 January 2018

R v Zhong

[2018] NSWLC 1

Fraud & dishonesty
CRIMINAL LAW SENTENCING CYBERCRIME EFFECT OF DELAY ON SENTENCING WEIGHT TO BE GIVEN TO SELF

Citation: R v Zhong [2018] NSWLC 1
Court: NSW Local Court (Downing Centre)
Date: 30 January 2018
Judge: Deputy Chief Magistrate Christopher O'Brien

Background

The offender pleaded guilty to four offences arising from his involvement in a sophisticated bank fraud syndicate investigated by the NSW Police Cyber Crime Unit. The offences spanned two incidents in March 2013 and included making false documents to obtain a financial advantage, possessing property stolen outside New South Wales, and causing an unauthorised computer function with intent to commit a serious indictable offence.

The syndicate's method involved recruiting "mules" to open or use existing bank accounts, then using fraudulent account authority forms to link those accounts to victims' accounts and transfer large sums. In the first incident, $180,000 was transferred from a victim's account, with $100,000 subsequently withdrawn and all but $7,000 retained by the offender. The second incident was thwarted by a vigilant bank employee who alerted police.

Significantly, the offending occurred while the offender was serving intensive correction orders (ICOs) imposed in December 2012 for an earlier, elaborate fraud operation involving multiple false identities and the use of underage mules. Those ICOs had not yet expired at the time of the offences.

  • What was the appropriate objective seriousness of the offending, having regard to the maximum penalties and the circumstances of the fraud?
  • What weight should be given to mitigating factors, including delay, the offender's age, and a psychologist's report containing self-serving and untested statements?
  • What discount applied for the guilty plea, and at what point in the proceedings was it entered?
  • How should the principles of totality, accumulation, and the Local Court's jurisdictional sentencing ceiling of five years apply?
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio.

Decision

Deputy Chief Magistrate O'Brien assessed the offending as objectively serious. The prescribed maximum of 10 years imprisonment per offence (assessed on an indictable basis, not by reference to the Local Court's jurisdictional limit) signalled the gravity Parliament attached to such conduct. The offending displayed considerable planning and sophistication, involved interstate travel under an assumed name, the production of false documents, and the recruitment of others including a young person. The offender occupied a significant role within the syndicate rather than a peripheral one.

The fact that the offences were committed while the offender was serving ICOs for very similar prior offending was a substantial aggravating factor. The Magistrate noted that the earlier sentences plainly had not deterred the offender, and this weighed heavily against him.

On mitigating factors, the court accepted that the offender was relatively young and that some prospects of rehabilitation existed. However, the Magistrate treated the psychologist's report with caution, noting that it contained self-serving and untested statements made by the offender to the psychologist. On delay, the court acknowledged the substantial time between the 2013 offences and the 2017 guilty pleas, applying established principles regarding the effect of delay on sentencing. The guilty pleas were entered relatively late in the proceedings, which limited the discount available, but a 25 percent reduction was applied to each indicative sentence.

After fixing indicative sentences for each offence, the Magistrate applied totality principles and imposed an aggregate sentence. Special circumstances were found, having regard to the offender's age, the fact that this was his first period of full-time custody, and his rehabilitation prospects, though the court flagged caution on the latter point. The non-parole period was set at 20 months, with a total term of three years.

Orders Made

  • The offender was sentenced to an aggregate term of imprisonment consisting of a non-parole period of 20 months and a total term of 3 years, both commencing 30 January 2018.
  • The offender became eligible for release on parole, subject to supervision, on 29 September 2019.
  • A consent order was made pursuant to the Victims' Rights and Support Act 2013 (NSW) in accordance with a signed Short Minute of Consent Order.

Note: A sentencing appeal to the NSW District Court was pending at the time of publication of this decision.

Key Takeaways

  • Sentencing in the Local Court for offences carrying a maximum of 10 years imprisonment on indictment proceeds by reference to that maximum as the yardstick for objective seriousness, not the Local Court's own jurisdictional ceiling.
  • Committing further offences while serving an intensive correction order for substantially similar prior offending is a significant aggravating factor, and the court drew an adverse inference from the fact that the earlier sentences had failed to deter.
  • Where a psychologist's report is based substantially on self-serving and untested statements made by the offender, the sentencing court may afford that report reduced weight.
  • Late guilty pleas, entered only after more serious charges are withdrawn, attract a more limited discount than early pleas that demonstrate genuine acceptance of responsibility and utilitarian value to the justice system.
  • Special circumstances justifying a longer parole period than the standard ratio can be found where an offender is young, has not previously served full-time custody, and demonstrates some rehabilitative prospects, though any such finding may be accompanied by judicial caution about the weight of those prospects.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 189A, 253(b)(ii), 308C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A (aggregate sentences)
- Victims' Rights and Support Act 2013 (NSW), s 97(1)

Cases
- AK v R [2016] NSWCCA 238
- Imbornone v R [2017] NSWCCA 144
- R v Barker; R v Gibson [2006] NSWCCA 20
- R v Cahill [2015] NSWCCA 53
- R v Donald [2013] NSWCCA 238
- R v Hall [2017] NSWCCA 313
- R v Moon (2000) 117 A Crim R 497
- R v Qutami [2001] NSWCCA 353
- Robertson v R (2007) 177 A Crim R 121
- Sabra v R [2015] NSWCCA 38
- Scook v R [2008] WASCA 114
- Upadhyaya v R [2017] NSWCCA 162